Opinion
No. 00 Civ. 6597 (LTS)(THK)
March 18, 2003
James M. Baker, Esq., Christopher James Bowes, Esq., Center for Disability Advocacy Rights, Inc., New York, New York, James B. Comey, United States Attorney For The Southern District Of New York, Susan D. Baird, Esq., New York, New York, for Defendant.
Jeffrey S. Trachtman, Esq., Michelle A. Rossettie, Esq. Kramer Levin Naftalis Frankel LLP, New York, New York, Kenneth Rosenfeld, Esq., Matthew Chachere, Esq., Northern Manhattan Improvement Corporation, New York, New York, for Plaintiffs.
MEMORANDUM OPINION AND ORDER
Plaintiff Elisa Encarnacion, suing on behalf of her minor daughter, Arlene George ("Arlene"), moves for a judgment pursuant to Rule 12(c) of the Federal Rules of Civil Procedure reversing the determination of Defendant Commissioner of Social Security that Arlene no longer qualifies for Supplemental Security Income ("SSI") under the Social Security Act and ordering the restoration of Arlene's benefit payments, or, alternatively, remanding the matter for a new hearing and decision. Defendant cross-moves for a judgment on the pleadings affirming her decision.
The Court has considered thoroughly all submissions and argument in connection with this motion. For the following reasons, Defendant's determination that Arlene is no longer eligible for SSI is reversed and Plaintiff's claim is remanded to the Commissioner for a new hearing and decision.
Background
Arlene George was awarded SSI benefits on June 1, 1992, on the basis of attention deficit disorder, asthma, and conduct disorder. (Transcript of the record of the Social Security proceedings ("Tr. ") at 82.) In 1997, the Commissioner redetermined Arlene's SSI eligibility pursuant to the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. In July 1997, the Commissioner issued an initial determination that Arlene no longer qualified for SSI, a decision that was upheld at the reconsideration level by a disability hearing officer. (Tr. at 64-88.) Ms. Encarnacion then requested a hearing before an Administrative Law Judge. The hearing before ALJ Pachnowski was held on September 4, 1998. Plaintiff was not represented by counsel. ALJ Pachnowski issued his decision on February 3, 1999. (Tr. at 23-30.) He found that Arlene had a marked limitation in the area of social functioning, but less than marked limitations in the areas of cognitive/communicative functioning, personal functioning, and "concentration, persistence, or pace," with no evidence of limitation of motor functioning, and thus denied her claim. (Tr. at 29-30).
Ms. Encarnacion filed a request for Appeals Council review on March 8, 1999, and also obtained counsel, who submitted legal arguments and additional evidence on her behalf in support of the appeal. The ALJ's decision became the final decision of the Commissioner on June 30, 2000, when the Appeals Council denied Plaintiff's request for review. (Tr. at 6-8.)
Plaintiff sought judicial review of the Commissioner's final decision on September 1, 2000. Defendant filed its motion for judgment on the pleadings on May 29, 2002.
Plaintiff cross-moved on November 18, 2002.
Discussion
A court may set aside a final determination by the Commissioner if the determination is the result of legal error or is not supported by substantial evidence. 42 U.S.C. § 405(g), 1383(c)(3) (West 1999); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks and citation omitted).
Before deciding whether a benefits determination is supported by substantial evidence, the Second Circuit has held, a court must "be satisfied that the claimant has had a full hearing under the Secretary's regulations and in accordance with the beneficent purposes of the [Social Security] Act." Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (citations omitted). Because SSI benefits hearings are considered to be non-adversarial proceedings, "the ALJ generally has a duty to develop the administrative record." Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996). This duty to fully and fairly develop the record exists whether or not the claimant is represented by an attorney, id., but if an applicant is not represented by counsel, "the duty of the administrative law judge is particularly acute, especially if the claimant is an infant." Colon v. Apfel, 133 F. Supp.2d 330, 344 (S.D.N.Y. 2001). When a claimant appears pro se, "the ALJ is under a heightened duty to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts." Cruz, 912 F.2d at 11 (citations omitted).
Despite the facts that Arlene was a child and Ms. Encarnacion was unrepresented by counsel, the ALJ failed to fulfill his duty to diligently develop the evidentiary record. The hearing transcript consists of 11 pages, of which only four represent testimony given by Plaintiff regarding Arlene, and only two testimony given by Arlene. (Tr. at 34-44.) Similar brevity has been found to indicate failure to fulfill the ALJ's investigative duty. See Straw v. Apfel, 2001 WL 406184, *3 (S.D.N.Y. 2001) ("brief" hearing with ten page transcript, "of which only six or seven [pages] represent testimony by plaintiff [mother] regarding [claimant son]" constitutes evidence of ALJ's failure to explore relevant facts). Moreover, the ALJ did not elicit any testimony from Plaintiff about the nature of Arlene's psychiatric treatment, nor did he ask about her ADHD or hyperactive behavior. Plaintiff twice related Arlene's problems in school to her getting "hyper," but the ALJ did not ask any follow-up questions about Arlene's ability to concentrate. (Tr. at 38). In fact, when Arlene herself described her biggest difficulty in school as not paying attention, the ALJ still failed to ask for elaboration.
The ALJ similarly neglected to develop the written record by failing to request the test data and other reports underlying the summaries provided in Arlene's 1996 Individualized Education Program ("IEP"). See Straw, 2001 WL 406184 at 3 (citing failure to request test data supporting summaries in IEP as example of deficient written record). One of the documents underlying the IEP which the ALJ did possess, a copy of a July 2, 1996 psychological evaluation, was incomplete, missing pages which included a paragraph noting that "[i]n the school environment, Arlene was described to be highly unfocused and talkative." (Tr. at 311. Complete report is at Tr. 303-311; ALJ's copy is at Tr. 147-153.) He did not seek information from Arlene's classroom teachers, although that information would have been helpful in assessing her capabilities in the area of "concentration, persistence or pace." Cf. Quinones v. Chater, 117 F.3d 29, 34-35 (2d Cir. 1997) (discussing the importance of teachers' reports for evaluating concentration, persistence and pace in child's SSI case).
The record before the ALJ did contain the report of consulting physician Solomon Miskin, M.D., dated June 17, 1997, and the Disability Evaluation Form prepared by state agency consultant Rodolfo Matundan, M.D., dated July 7, 1997. (Tr. at 207-09; 140-43.) In his report, Miskin noted that Arlene "demonstrates signs of impaired concentration and attention with a markedly limited attention span," although he scored her Global Assessment of Functioning ("GAF") at 70. (Id. at 208-09.) Matundan, who never examined Arlene, advised that Arlene had a less than marked limitation in the area of concentration, persistence, or pace. (Id. at 141.) Before the ALJ hearing, the record was supplemented by the treatment notes of Dr. Kessler (Arlene's treating psychiatrist) from January to June of 1998. (Id. at 211-16.) The day after the hearing, on September 5, 1998, the ALJ sent Dr. Kessler a letter requesting her assessment of Arlene's disability, but there is no evidence that he advised Plaintiff to seek an assessment from Dr. Kessler, and, before Dr. Kessler responded to the request, the ALJ issued his decision without further attempts at obtaining Dr. Kessler's opinion.
"A GAF in the range of 61 to 70 indicates that the individual has some mild symptoms . . . or some difficulty in social, occupational, or school functioning . . . but generally functions pretty well[.]" (Def.'s Mem. at 10 n. 5 (quoting DSM-IV at 32 (4th ed. 1994))).
ALJ Pachnowski failed to obtain a report or opinion from Dr. Kessler despite the fact that the "opinion of a treating physician is given controlling weight if it is well supported by medical findings and not inconsistent with other substantial evidence." Rosa v. Callahan, 168 F.3d at 78-9. As other courts have recognized,
[T]he duty to develop a full record and to assist a pro se plaintiff compels the ALJ . . . to obtain from the treating source expert opinions as to the nature and severity of the claimed disability. . . . Thus, when the claimant appears pro se, the combined force of the treating physician rule and of the duty to conduct a searching review requires that the ALJ make every reasonable effort to obtain not merely the medical records of the treating physician but also a report that sets forth the opinion of that treating physician as to the existence, the nature, and the severity of the claimed disability. . . . Until he satisfies this threshold requirement, the ALJ cannot even begin to discharge his duties to the pro se claimant under the treating physician rule.
Almonte v. Apfel, 1998 WL 150996, *7 (S.D.N.Y. 1998) (quoting Peed v. Sullivan, 778 F. Supp. 1241, 1246 (E.D.N.Y. 1991). See also Perez v. Chater, 77 F.3d at 47 (ALJ required to make "`every reasonable effort to help [the claimant] get medical reports from [her] own medical sources.' ") (quoting 20 C.F.R. § 404. 1512(d)); Maestre v. Appel, 1998 WL 477950 at *4 (S.D.N.Y. 1998) (ALJ "obligated to explore the facts by asking questions of and obtaining relevant medical records from pro se claimants"). A reasonable effort to develop medical evidence entails "more than merely requesting reports from treating physicians[;] [i]t includes issuing and enforcing subpoenas requiring the production of evidence . . . and advising the plaintiff of the importance of the evidence." Jones v. Apfel, 66 F. Supp.2d 518, 524 (S.D.N.Y. 1999).
In his decision, the ALJ discounted Dr. Miskin's opinion that Arlene had a "markedly limited attention span" in light of the fact that Dr. Miskin also reported that Arlene could "count backward from ten with good speed and accuracy." (Id. at 6.) The ALJ also interpreted Dr. Kessler's notes as lacking any record of "problems with concentration or attention," despite multiple references in the notes to academic underachievement and disruptive class behavior, and a noted GAF of 55/60. (Tr. at 28; 211-16.) The Second Circuit has held that "[i]n analyzing a treating physician's report, the ALJ cannot arbitrarily substitute his own judgment for competent medical opinion." Rosa v. Callahan, 168 F.3d at 79 (internal quotation marks omitted). In this case the ALJ did not have Dr. Kessler's opinion, but formed a medical judgment on the basis of Dr. Kessler's treatment notes alone. The ALJ's interpretation of Dr. Miskin's opinion evidences a similar improper medical determination. At the very least, any inconsistency between Dr. Miskin and Dr. Matundan's conclusions only served to heighten the ALJ's duty to obtain a report from Dr. Kessler. Accordingly, it is clear that the ALJ failed to fully and fairly develop the record that formed the basis for his determination that Arlene no longer qualified for SSI benefits.
Dr. Kessler did prepare an assessment of Arlene's condition, dated March 24, 1999, that was part of the record before the Appeals Council. Defendant contends that, because this evidence is already contained in the record, "no further action in this regard is required." (Def.'s Mem. at 33-34.) Dr. Kessler's assessment included a GAF of "50/55" and references to "disruptive behavior in class" and "poor academic achievement." (Tr. at 330-31.) The Court notes the GAF score not because of any dispositive weight that it should be given, but only because it conflicts with the score assigned to Arlene by Dr. Miskin. Though the Appeals Council does not have to credit a treating physician's findings, it does have an obligation to expressly recognize the existence of favorable reports of a treating physician and to explain the weight it gives such reports. See Snell v. Apfel, 177 F.3d 128, 133-34 (2d Cir. 1999). "Failure to give `good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand." Id. at 133. Although the Appeals Council acknowledged the existence of "additional evidence" in its denial of Plaintiff's request for review, it did not explicitly refer to Kessler's assessment. Consequently, Defendant's argument that Appellate Council review of additional evidence cures the ALJ's failure to fully develop the record must fail.
Conclusion
The failure of the ALJ to fully develop the record and to provide Plaintiff, who was unrepresented by counsel, an adequate opportunity to do so, denied Plaintiff a fair hearing. Plaintiff's cross-motion for judgment on the pleadings is hereby granted, and Defendant's cross-motion for judgment on the pleadings is denied. Plaintiff's claim is remanded to the Commissioner for a new hearing and decision pursuant to the fourth sentence of 42 U.S.C. § 405(g).
IT IS SO ORDERED.